Petitioners Richard and June Ottinger alleged that defamatory statements were made about them regarding their house-building plans by three anonymous bloggers on a blog hosted by the New York Journal News. Petitioners served The Journal News with a subpoena to ascertain the names of the bloggers, and the News moved to quash.

Turning to persuasive authority from the Superior Court of New Jersey, Appellate Division in Dendrite International v. Doe, 775 A.2d 756 (2001) and the Delaware Supreme Court in Doe v. Cahill, 884 A.2d 451 (2005), the New York court established a standard to determine when expedited discovery should occur and when an internet service provider must disclose the identity of an anonymous blogger who has made allegedly defamatory statements.

Four guidelines were established in Dendrite that the Supreme Court of New York applied to the case at hand.

1. Plaintiffs should take all efforts to notify the anonymous blogger “that they are the subject of a subpoena or application for an order of disclosure, and [the court should] withhold action to afford the fictitiously-named defendants a reasonable opportunity to file and serve opposition to the application”—i.e., plaintiffs need to post a message on the blog to let the bloggers know they are being subpoenaed.

2. Plaintiffs must identify the exact postings they allege are defamatory.

3. All information must be evaluated to determine whether plaintiffs have a prima facie cause of action. Plaintiffs must produce sufficient evidence supporting all elements of the cause of action.

4. Defendant’s right of free speech must be balanced against the strength of the prima facie case and the necessity for disclosure.

Cahill elaborated on the third step. Evidence of “actual malice” may be required in a defamation suit. However, it is an almost impossible element for the plaintiff to produce evidence for, because it is not within the plaintiff’s control; therefore, the plaintiff is not required to produce evidence on this element.

The court applied each of the four steps to the complaint alleged by the Ottingers and denied the New York Journal News’ motion, ordering the newspaper to disclose all pertinent information on the anonymous bloggers within five days.

In other words, do not automatically assume the Internet is a free-for-all forum where you can remain in the shadow of your words—light may be shed on your identity at the other end of the tunnel.

Rachel Gauchman is a second year law student at New York Law School interning at Jacobs deBrauwere this summer.

In a lawsuit filed in August 2007, American Airlines claimed that Google violated its trademark rights by allowing competitors to bid on keyword search text containing its brand name in order to generate “sponsored links” on search result pages. Google claimed that this “invisible use,” which did not generate any advertisements using American Airlines’ name, did not violate any trademark.

While the precise impact of the settlement on use of the term “American Airlines” as a keyword search term is not known, Google may have agreed to halt bidding on “American Airlines” as a keyword. In several searches conducted by our office, no sponsored link (other than those sponsored by American Airlines itself) appeared when a Google search was conducted using “American Airlines.” In contrast, Google searches on other airlines generated numerous sponsored links by discount airfare vendors.

Whatever its agreement with American Airlines, however, it is clear that, at least for the moment, Google remains free to allow competitors to bid on keyword search text for other trademarks.

From Watergate and the Pentagon Papers to Iran-Contra and Abu Ghraib, journalists have used information from confidential sources to reveal illegal conduct by our government. It is vital to our democracy that we protect the people who are the sources for the exposes that are reported in newspapers, magazines and books and broadcast in news programs on television and radio. KATHLEEN M. CONKEY and NORMAN GREEN will discuss the importance of confidential sources to a free press.

Kathleen Conkey, a First Amendment and media lawyer, is Of Counsel to the media law boutique firm of Jacobs deBrauwere, LLP, in New York City. Prior to returning to private practice in 2007, she was Vice President and Senior Counsel in the Intellectual Property and Litigation department of MTV Networks, where she was primarily responsible for pre-broadcast review of the network’s many productions.

Norman Green won the NAACP Image Award for his hidden-camera investigation of racial profiling called “Driving While Black.” In 2006, he executive produced “New Year Baby,” about a family’s flight from the Khmer Rouge, which won the “Movies That Matter” Human Rights Watch Award and is currently airing on Independent Lens, as well as touring festivals around the world. Last year he directed “I’m From Rolling Stone,” a 10-part series for MTV Networks about aspiring journalists and in 2005 and 2006, he produced two documentaries for Viacom’s LGBTQ network, Logo: “The Elephant in the Room” following gay Republicans, and “Latino Beginnings” about gay Latinos.

ABFFE is the bookseller’s voice in the fight against censorship. The MLRC Institute is a not-for-profit educational organization focused on the media and the First Amendment. This presentation is part of a larger initiative sponsored by the McCormick Tribune Foundation, which has funded the MLRC Institute to create a Speakers Bureau to educate the public on the reporter’s privilege. More information about the Speakers Bureau and the MLRC Institute is available at www.medialaw.org.

Download flyer here.

Stevens v. Publicis, S.A. et al., (2008 NY Slip Op 02880) involved a three-year employment contract, under which plaintiff’s duties were described as the “customary duties of a Chief Executive Officer.” Six months into the employment period, trouble arose and the plainitff CEO was given three options—leave the company; stay, but work only on new business not as a CEO; or come up with another bright idea for what to do with his time.

As is increasingly the case in modern business practice, the deposed CEO began an email exchange with his boss over the three options. After some time, the boss set out his understanding of the deal points the two had agreed upon—that the former CEO would stay on, but devote the vast majority of his time to new business development, with only 10% of his time to be spent on management and operations.

“Many business people are still unaware of the sweeping changes in contract creation brought about by electronic signatures.”

The plaintiff sent a reply email the next day saying, “I accept your proposal with total enthusiasm and excitement…” to which his boss replied the same day, “I am thrilled with your decision.”

And oh yes, each of the three emails bore the typed name of the sender at the foot of the message.

Under the Statute of Frauds, contracts to be performed in a period beyond one year must be evidenced by a “signed writing.” In addition, in this case, the plaintiff’s employment agreement itself required that any modifications be signed by all parties.

So, did the email exchange constitute a “signed writing?” Was it a modification “signed by all parties?”

Yes, on both counts according to the First Department.

Many business people are still unaware of the sweeping changes in contract creation that have been wrought by the 2000 Electronic Signatures in Global and National Commerce Act, 15 USCA Sec.70001 et seq. (the “ESign Act”) and recent case law interpreting the meaning of a signature. Essentially, under ESign, a signature or contract “may not be denied legal effect, validity or enforceability solely because it is in electronic form.” Further, even without citing ESign, another recent New York case held that a deal for the sale of real property (always subject to the Statute of Frauds) could be created and signed by the email sender’s “act of typing his name at the bottom of the email [which] manifested his intention to authenticate this transmission for Statute of Frauds purposes. “ Rosenfeld v. Zerneck, 4 Misc. 3d 193, 776 N.Y.S. 2d 458 (Sup. Ct. Kings Co., NY, May 4, 2004).

Stevens v. Publicis gives no clue as to whether the parties actually typed their own names at the bottom of each of their messages or if the names popped up as part of auto-signatures widely used on business emails. Either way, if the terms outlined in the email are specific enough to constitute a contract, the fact that the signature is electronic rather than hand signed will not preclude the formation of a contract. So, be careful what you automatically-e-sign!

The CDA § 230 states: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” Under § 230 an “information content provider” is defined as one who is “responsible, in whole or in part, for the creation or development of” content.

First, the court held Roommate could not be immunized for the questions it posed via drop down menus.

The FHA makes it unlawful to ask certain discriminatory questions for a very good reason: Unlawful questions solicit (a.k.a.“develop”) unlawful answers. Not only does Roommate ask these questions, Roommate makes answering the discriminatory questions a condition of doing business. This is no different from a real estate broker in real life saying, “Tell me whether you’re Jewish or you can find yourself another broker.”When a business enterprise extracts such information from potential customers as a condition of accepting them as clients, it is no stretch to say that the enterprise is responsible, at least in part, for developing that information.

Id. at *4.

Furthermore, the court held Roommate could not be immunized by § 230 based on the way it channeled and filtered information.

Here, Roommate’s connection to the discriminatory filtering process is direct and palpable: Roommate designed its search and email systems to limit the listings available to subscribers based on sex, sexual orientation and presence of children. Roommate selected the criteria used to hide listings, and Councils allege that the act of hiding certain listings is itself unlawful under the Fair Housing Act, which prohibits brokers from steering clients in accordance with discriminatory preferences. We need not decide the merits of Councils’ claim to hold that Roommate is sufficiently involved with the design and operation of the search and email systems-which are engineered to limit access to housing on the basis of the protected characteristics elicited by the registration process-so as to forfeit any immunity to which it was otherwise entitled under section 230.

Id. at *7.

The court arrived at the aforementioned conclusion by defining “development” as follows.

We believe that both the immunity for passive conduits and the exception for co-developers must be given their proper scope and, to that end, we interpret the term “development” as referring not merely to augmenting the content generally, but to materially contributing to its alleged unlawfulness. In other words, a website helps to develop unlawful content, and thus falls within the exception to section 230, if it contributes materially to the alleged illegality of the conduct.”

Id. at *5.

The court, in an attempt to clarify the meaning of “develop” may have broadened (or at least blurred) its definition. Drawing the line as to whether an interactive service provider is a “developer” of information may become more difficult in the future.

However, the 9th Circuit held that Roommate would be immunized by § 230 for what people wrote in response to the “Additional Comments” section, because the input field was open-ended.

Lurking behind the holding could be the view that the internet has matured and is no longer a new medium to be treated with deference in order to let it develop.

The Internet is no longer a fragile new means of communication that could easily be smothered in the cradle by overzealous enforcement of laws and regulations applicable to brick-and-mortar businesses. Rather, it has become a dominant-perhaps the preeminent-means through which commerce is conducted. And its vast reach into the lives of millions is exactly why we must be careful not to exceed the scope of the immunity provided by Congress and thus give online businesses an unfair advantage over their real-world counterparts, which must comply with laws of general applicability.

Id. at *3, n.15.

Ah, the pendulum has indeed begun to swing away from broad § 230 immunity. As most web services gain their functionality through channeling and filtering information, expect plaintiffs to read the holding of this decision broadly.

See “Tension Over Sports Blogging,” by Tim Arango.

For some media representatives, the issue of conditions on credentials has First Amendment and antitrust ramifications. According to the Times’ report, Sandra Baron, executive director of the Media Law Resource Center, said: “My view is that this is news gathering, and I look for legal responses to any effort to clamp down on news gathering. What I see is a strident effort by a powerful monopoly to control information. They have a monopoly on the game. Now they want to have a monopoly on the information.”

For its part, MLB argues that too much video and audio on a nonaffiliated website could infringe the rights of broadcasters who have paid millions to carry live games, as well as attract traffic away from the lucrative websites run by MLB and its teams. And MLB also disputes the notion that it is poaching on the media’s turf, and not the other way around. As MLB views it, 10 years ago, newspapers and magazines had no more of a stake in the Internet or the world of video and audio than MLB.

This season, MLB opened the bidding by issuing guidelines banning all online galleries of baseball game photos, placing stricter limits on the number of photos that could be published from a game, the running time of online audio and video reports and the length of time certain online content could be archived. After six weeks of negotiations between MLB and APSE, which took the laboring oar on behalf of media generally, on April 9, 2008, APSE’s John Cherwa of the Orlando Sentinel reported that a deal had been reached with MLB, subject to the agreement of APSE’s membership. See this link. For a copy of the latest MLB terms and conditions, click here.

The principal issue for most sports editors had apparently been the restriction on photo galleries. MLB has now agreed to place no restrictions on photo galleries except that there be a “reasonable number of photos,” a requirement that was apparently taken from the National Football League’s credentials. There remain tighter limits on online audio and video (120 seconds) and archival use (72 hours). According to Cherwa, these limits are still unacceptable to APSE and will probably be the subject of future negotiations.

MLB is not the only sports organization to use its credentials requirements as leverage for giving its own Internet properties an advantage over the websites of media competitors. Even the Illinois High School Association attempted to restrict, albeit unsuccessfully, the “secondary use” of photographs taken at Illinois high school basketball and football games and tournaments. See the following links for more information: link 1 | link 2.

Watchdogs on both sides of the issue, the Center for Creative Voices in Media, in the corner of the First Amendment, and Parent’s Television Counsel, representing the rights of parents to stamp out indecent television, had vastly different reactions the Supreme Court’s move. Andrew Schwartzman, representing the Center for Creative Voices, had predicted the Supreme Court would never take the case. Perhaps wishful thinking on Schwartzman’s part, given that Tim Winters of Parents Television Council was “delighted” that the Supreme Court would step in. See, “Court Will Examine Profanity Rules,” The Associated Press, March 17, 2008.

So, what does it mean that the Supreme Court has decided to wade into the muddy waters of FCC indecency rules for the first time in 30 years? Given the solid conservative bent of the current Court, and a number of other factors, television broadcasters and First Amendment warriors have much to worry about.

The Second Circuit called the FCC’s new policy that utterances of the F-word and the S-word are always indecent, no matter how fleeting, arbitrary and capricious, finding that unless the Commission could come up with a constitutionally well-grounded explanation for the policy, it must fall. The Second Circuit actually allowed the FCC a chance to explain the new policy. Instead, the FCC went straight to the Supreme Court. There’s some hope the Supreme Court could focus on the narrow issue of whether the Commission can justify its new policy. But if that was the Court’s intent, why take the case, when the FCC could have chosen do that under the Second Circuit ruling?

Television insiders also point out that these particular fleeting expletives might not make the best case for freedom of speech arguments. As one pointed out to me recently, Nicole Ritchie’s joke (”You try getting cow shit out of a Prada bag–it’s not so fucking simple.”) had the feel of being scripted, while Bono’s “fucking brilliant” was uttered on a show that didn’t have a five-second delay system in place. Critics will argue that with the use of readily available technology and some care, both expletives might have been prevented from reaching the viewing audience.

Given these facts, this could be the Justices’ chance to look at the FCC’s basic mandate—to regulate broadcast television in the context of today’s wide open communications field and vote it up or down. Should the Supreme Court uphold the FCC’s regulatory role and keep broadcast television a sea of relative G-rated calm, while the internet and cable run wild and free? Or should the FCC stand down, letting DVR technology, parents and self- regulation rule television, whether it is transmitted via airwaves, cable, or increasingly, the internet? One thing is certain, opening the can of worms that is the government’s right to censor anything inevitably leads to two questions: If the FCC can regulate broadcast, why can’t it regulate cable and internet? Or the flip side, if the FCC can’t regulate cable and internet, why should it be able to regulate broadcast? As each of these formerly separate and distinct delivery systems continues to converge, the reasons for treating them differently become less sustainable every day. If this conservative Supreme Court actually decides to tackle the issue of what is and is not acceptable for child viewers of mass media to hear and see, it won’t just be broadcasters who will need to fear the censor’s scythe.

Kathleen Conkey, Of Counsel, Jacobs deBrauwere, and Deborah Principe Lake, Esq., Vice President, Standards & Practices, MTV Networks, will present a 1.5 hour CLE on Indecency Law and Standards for Television, Internet and Wireless, April 16. The program is called “Viewer Discretion Advised” and is sponsored by the TV & Radio Committee of the Entertainment, Arts and Sports Law Section of the New York State Bar Association. For more information or to register, click www.nysba.org/viewerdiscretion.

The defendants operate a website called Ripoff Report, located at www.ripoffreport.com, where visitors are invited and encouraged to post consumer complaints. A Ripoff Report visitor named Spencer Sullivan, who is not a party to this action, had posted three entries complaining about the plaintiff, a company that brokers investments in gemstones. Afterwards, Sullivan contacted the defendants and asked them to remove his entries, but the defendants refused to remove them.

The court held that, even if the defendants were on notice that the posts were potentially defamatory, Section 230 bars the defamation claim. “We conclude that liability based on an author’s notice, workable or not, is without statutory support and is contrary to well-settled precedent that the CDA is a complete bar to suit against a website operator for its exercise of a publisher’s traditional editorial functions-such as deciding whether to publish, withdraw, postpone or alter content.” Xcentric Ventures, 2008 WL 565102 at *3. (citations omitted)

Interestingly, the court may have stated the law more broadly than it had intended. Instead of the Section 230 acting a complete bar to suit against website operators for exercising a publisher’s editorial functions, Section 230 has been held to be a complete bar to suit against website operators despite any editorial functions that they may exercise on content provided by third parties.

The plaintiff also attempted to argue that the defendants created and developed some of the content on the site by employing category tags with preset text. In order to post on the defendants’ site, visitors are required to select a category with which to label their complaint. Sullivan chose the category “Con Artists” from a list provided by defendants to label one of his posts. Plaintiff attempted to rely on Fair Housing Council of San Fernando Valley v. Roommates.com, LLC, 489 F.3d 921 (9th Cir.2007), reh’g granted, 506 F.3d 716 (9th Cir.2007), which based its holding partially on such structured inputs.

The court properly declined to give Roommates.com any consideration, as the 9th Circuit’s decision has been vacated and will be superseded by the forthcoming en banc opinion. The court also rejected plaintiff’s request to stay the case pending the en banc opinion, stating the following: “Believing that Fair Housing is analogous to this action, plaintiffs have filed a motion to stay until the Ninth Circuit issues its en banc opinion. We reject that suggestion. There is no reason for this action to remain on our docket until another court issues an opinion which may or may not be binding, or even persuasive, on these issues.”

New York resident Rachel Ehrenfeld is the author of the 2003 book, Funding Evil: How Terrorism is Financed and How to Stop It, which was published only in the United States. The book claimed that Khalid Salim Bin Mafouz, a Saudi Arabian citizen and resident, financially supported terrorism. Mafouz sued for defamation in Great Britain, where neither party lived, based solely on the internet sale of a relatively small number of books. He chose Great Britain wisely. Under US law, Mafouz, a public figure, would have had to show not only that Ehrenfeld’s statements about him were false, but also that they were published in reckless disregard of the truth. In Great Britain, on the other hand, Ehrenfeld had the burden of establishing that her statements were true. This type of forum-shopping has been dubbed “libel tourism.” (Libel tourism has become popular even for US plaintiffs. Just this month, Nicolas Cage brought a libel claim against Kathleen Turner over accusations in Turner’s forthcoming autobiography that Cage was arrested for DUI and that he stole a dog.) In this case, it worked for Mafouz. In light of the stringency of British law, Ehrenfeld chose not to defend against the action, and Mahfouz obtained a judgment in the amount of $225,000, an injunction against publication of the book in England and Wales, and an order that Ehrenfeld apologize.

Ehrenfeld brought a declaratory judgment action against Mafouz in New York, seeking (amongst other things) to enjoin enforcement of the judgment in New York on First Amendment grounds. Mafouz moved to dismiss, claiming that the New York courts lacked jurisdiction over him. The courts sided with Mafouz, holding that they have no jurisdiction over a person who sues a New York resident in a non-US jurisdiction, and whose contacts to New York stemmed exclusively from that lawsuit.

The Ehrenfeld case must be viewed narrowly for exactly what it is – a procedural decision based upon a narrow set of facts, brought before any attempt was made to enforce the British judgment. In fact, U.S. courts have increasingly showed their reluctance to enforce foreign defamation verdicts. As the New York courts stated in Bachchan v. India Abroad Publications, Inc., 154 Misc.2d 228, 235, 585 N.Y.S.2d 661 (Sup. Ct. N.Y. Co. 1992), “The protection to free speech and the press embodied in [the First Amendment] would be seriously jeopardized by the entry of foreign libel judgments granted pursuant to standards deemed appropriate in England but considered antithetical to the protections afforded by the Constitution.”

The Ehrenfeld case also spurred the New York legislature to introduce the “Libel Terrorism Protection Act” (S.6687/A.9652), which would both allow the New York state courts to gain jurisdiction over a libel plaintiff who obtained a foreign judgment against anyone with sufficient ties to New York State, and would render foreign defamation verdicts unenforceable in New York unless the foreign law under which the case was decided provides the same speech protections as guaranteed under the U.S. Constitution. We will be following the progress of the Bill on this Blog.